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Click here for the full text of this decision FACTS:Plaintiff-shipper MAN Roland Inc. appeals from the district court’s grant of summary judgment in favor of defendant-carrier ASCO USA, L.L.C., holding ASCO not liable for weather-related damage to a printing press during shipment. HOLDING:Vacated and remanded. ASCO argues that it was not negligent because “it did everything it could have done to protect the press given MAN Roland’s instructions” to use an unsuitable method of transport-flatbed trailers covered by tarpaulins. ASCO contends that, as a matter of law, it was not negligent because no amount of care would have protected the press from damage. ASCO relies on A.J. Tebbe & Sons Co. v. Brown Express, 341 S.W.2d 642 (Tex. 1961), in which the Texas Supreme Court stated in dicta that “[t]he shipper who knowingly accepts and uses an unsuitable car supplied by the carrier instead of requesting and obtaining a proper vehicle when the latter course is reasonably available to him is deemed in law to have selected the one used and cannot subject the carrier to liability for damages . . . .” The court finds no federal case that has held that a carrier is relieved of its duty of care under the Carmack Amendment under these circumstances. ASCO’s argument fails because it rests on the faulty premise that an instruction to use an unsuitable means of transport automatically relieves a carrier of its duty to exercise ordinary care. Governed only by MAN’s instruction to “properly tarp[]” the load, ASCO was obliged to “ furnish suitable equipment” and exercise reasonable care in selecting tarpaulins and attaching them to the trailer. Moreover, ASCO failed to establish that the tarpaulins were patently unsuitable as contemplated in A.J. Tebbe & Sons. At best, the record indicates that MAN chose a less expensive, though perhaps not risk-free, method to protect the press. The court finds some evidence that ASCO exercised due care. It researched weather conditions, informed MAN (through KMX) of its concerns regarding transportation of the press, and covered the press with tarpaulins. Conversely, MAN has provided some evidence of ASCO’s negligence, including information indicating that it is industry custom to transport water-sensitive materials under a single waterproof tarpaulin and evidence demonstrating that ASCO failed to do so, choosing to use multiple nylon and canvas tarpaulins instead. The court holds, based on the summary judgment evidence, that 1. whether ASCO or Joe D. Hughes breached the standard of care in selecting these materials, rather than more durable tarpaulins and bungee cords, and 2. whether these materials, if properly selected, were attached and secured with reasonable care, are questions of fact for the jury. Assuming that MAN undertook a duty when, as the shipper, it directed ASCO to use tarpaulins instead of its preferred method, ASCO has not established as a matter of law that MAN was negligent. Because ASCO cannot establish as a matter of law that it was free of negligence and that the damage was attributable to MAN’s act, the district court erred in granting summary judgment in ASCO’s favor. OPINION:Garza, J.; Reavley, Higginbotham and Garza, JJ.

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